HomeMy WebLinkAbout06 - Amendment to PSA with Schmitz & AssociatesQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
November 18, 2025
Agenda Item No. 6
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jaime Murillo, Acting Community Development Director - 949-644-
3209, jmurillo@newportbeachca.gov
PREPARED BY: Benjamin M. Zdeba, AICP, Planning Manager - 949-644-3253,
bzdeba@newportbeachca.gov
TITLE: Amendment No. Two to the Professional Services Agreement with
Schmitz & Associates
ABSTRACT:
For the City Council's consideration is Amendment No. Two to the professional services
agreement with Schmitz & Associates (Schmitz) for advisory and advocacy services
before the California Coastal Commission (CCC). The City of Newport Beach (City)
entered into the agreement in March 2025, and Schmitz has successfully supported
several Local Coastal Program amendments and other CCC-reviewed projects since that
time. With additional CCC items anticipated, staff recommends that the City Council waive
standard bidding requirements under Council Policy F-14 and approve an increase to the
agreement's not -to -exceed amount from $120,000 to $240,000 to ensure uninterrupted
service and continued representation before the CCC.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Authorize the Mayor and City Clerk to enter into an Amendment No. Two to On -Call
Professional Services Agreement with Schmitz & Associates for Advisor and Advocate
Services for City Applications Before the California Coastal Commission with an
amount not -to-exceed $240,000; and
c) Waive the standard bidding requirements provided by City Council Policy F-14 and
approve a single source award of the agreement to Schmitz & Associates.
DISCUSSION:
In the past, the City has benefited from engaging the services of specialized firms to
advise and advocate for City applications and efforts before the California Coastal
Commission (CCC). Due to several major amendments to the City's certified Local
Coastal Program and Implementation Plan, as well as several projects with complex
coastal issues, the City once again needed such services. On March 25, 2025, City staff
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Amendment No. Two to the Professional Services Agreement with Schmitz &
Associates
November 18, 2025
Page 2
executed a single source professional services agreement with Schmitz & Associates
(Schmitz) for an amount not -to -exceed $75,000 (Attachment C).
On July 21, 2025, Amendment No. One was executed to increase the total compensation
amount to $120,000 (Attachment B).
Since entering into the original agreement, Schmitz has successfully assisted the City
with notable Local Coastal Program (LCP) Amendments, including the Commercial
Parking Update, Short -Term Lodging Amendments, and the VE Special Flood Hazard
Overlay Zone, as well as Public Works projects such as the accessibility improvements
for The Wedge walkway.
City staff foresees using Schmitz's services for other upcoming projects, which
necessitate this amendment (Attachment A) to increase the total compensation to
$240,000 The termination date will remain unchanged as March 31, 2027.
Waiver of Council Policy F-14
City Council Policy F-14 allows for the request of sole and single source awards in certain
cases when competitive bidding is either impractical or impossible. The City had
previously engaged Schmitz and McCabe & Company (McCabe) for these services
related to the CCC. Due to pending City litigation with a client, McCabe was not an option
at the time. Other consultants with recognized CCC experience and documented success
included CAA Planning, Inc., and Gaines & Stacey; however, both firms were/are
representing various individuals who have applications for coastal development and
harbor permits in the City, potentially resulting in conflict -of -interest issues. The City
Council's approval of a single source award to Schmitz is recommended to help ensure
uninterrupted service and continued representation before the CCC.
FISCAL IMPACT:
The adopted budget includes sufficient funding for this purchase. It will be expensed to
the Planning Professional Services account in the Community Development Department,
01050501-811008.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
6-2
Amendment No. Two to the Professional Services Agreement with Schmitz &
Associates
November 18, 2025
Page 3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Amendment No. Two
Attachment B — Amendment No. One
Attachment C — Original Professional Services Agreement
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Attachment A
Amendment No. Two
AMENDMENT NO. TWO TO
ON -CALL PROFESSIONAL SERVICES AGREEMENT
WITH SCHMITZ & ASSOCIATES FOR
ADVISOR AND ADVOCATE SERVICES FOR CITY APPLICATIONS BEFORE THE
CALIFORNIA COASTAL COMMISSION
THIS AMENDMENT NO. TWO TO ON -CALL PROFESSIONAL SERVICES
AGREEMENT ("Amendment No. Two") is made and entered into as of this 18th day of
November, 2025 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City"), and SCHMITZ & ASSOCIATES,
a California corporation ("Consultant"), whose address is 28230 Agoura Road, 200,
Agoura Hills, CA 91301, and is made with reference to the following:
A. On March 25, 2025, City and Consultant entered into a Professional Services
Agreement (Contract No. C-7440-2) ("Agreement") to provide advisor and
advocate services for City applications before the California coastal commission
("Project").
B. On July 21, 2025, City and Consultant entered into Amendment No. One to the
Agreement ("Amendment No. One") to increase the total compensation.
C. The parties desire to enter into this Amendment No. Two to increase the total
compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. COMPENSATION TO CONSULTANT
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Two Hundred Forty
Thousand Dollars and 00/100 ($240,000.00), without prior written authorization from
City. No billing rate changes shall be made during the term of this Agreement without the
prior written approval of City."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. Two,
including all reimbursable items and subconsultant fees, in an amount not to exceed One
Hundred Twenty Thousand Dollars and 00/100 ($120,000.00).
M0
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Schmitz & Associates Page 2
• •
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Ha
City Attorne
ATTEST:
Date:
An
Lena Shumway
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Joe Stapleton
Mayor
CONSULTANT: Schmitz & Associates, a
California corporation
Date:
By:
Donald W Schmitz Jr.
Chief Executive Officer, Chief Financial
Officer, Secretary
[END OF SIGNATURES]
Schmitz & Associates
Page 3
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Attachment B
Amendment No. One
.:
104 Ciwir Center ❑FiVe
Newport Beach, Cal ifornla 92660
949 b44-3W5 1 949 644-3039 FAY
newportbeachca.gav{rityderk
July 23, 2025
Schmitz & Assoclatcs
At#.n: Don Sf hmitx
28230 Agoura Road, Suite 200
Agoura hills, CA 91. 01
Rc: C:itY C untract No. (:-7440-2
Dcar Don Qhrnitz:
Encloscd please find your executed copy ul" Ame-ndment No. One to the 011-Call
Profcssional Services A ;reement for Advisor and AdvocaLe Services for C ity Applications
he Core the California Coastal Commission,
if you have arly LIuestions or neod additional information, please ccmtact Administrativc
Analyst Brittany R arnire'e, at (949) 644-3239.
Sii��:crcly,
,r
Molly Pciry
Iintcrim City Clerk
F.nclusures
CC. Brittany Ramirez, Community DcvcCopment (via email)
AMENDMENT NO ONE TO
ON -CALL PROFESSIONAL SERVICES AGREEMENT
WITH S HMITZ & ASSOCIATES FOR
ADVISOR AND ADVOCATE SERVICES FOR CITY APPLICATIONS BEFORE THE
CALIFORNIA COASTAL COMMISSION
THIS AMENDMENT NO. ONE TO ON -CALL PROFESSIONAL SERVICES
AGREEMENT ("Amendment No. One") is made and entered into as of this 21 st day of
July. 2025 ("Effective Date"), by and between the CITY OF NEWPOI T BEACH, a
California municipal corporation and charter city ("City"), and SCHMITZ & ASSOCIATES,
a California corporation ("Consultant"), whose address is 28230 Agoura Road, Suite 200,
Agoura Hills, CA 91301, and is made with reference to the following:
RECITALS
A. On March 2, 2025. City and Consultant entered into a Professional Services
Agreement (Contract No,-7440-) ("Agreement") to provide advisor and
advocate services for City applications before the C aIifornla Coastal Commission
("Project"),
B. The parties desire to enter into this Amendment No- One to increase the total
compensation,
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. COMPENSATION TO CONSULTANT
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Fates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Hundred Twenty
Thousand Dollars and 001100 ($120,000.00), without prior written authorization from
City. No billing rate changes shall be made during the term of this ,agreement without the
prior written approval ofCity."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed
Forty Five Thousand Dollars and 001100 ($45,000)-
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect,
[SIGNATURES ON NEXT PAGE)
Schmitz & Associates Page 1
6-10
IN WITNESS WHEREOF. the parties have caused this Amendment Flo_ One to be
executed on the dates written below.
APPROVED AS TO FORM;
CITY ATTORNEY'S OFFICE
Date---�1�1
By. L.,-
Aalpn D. Harp
City Attorney
A�---
Da
B
Mo
Into
CITY OF NiEWPORT BEACH,
a California municipal corporation
Dace; ;t1l
By.
c . Leung
IM(Manager
CONSULTANT- Schmitz & Associates, a
California corporation
Date. 7-1 ,
gy;^-, t
Donald W Schmitz Jr.
Chef Executive Officer, Chief Financial
Officer, Secretary
(END OF SIGNATURES)
Schmitz & Associates Page
6-11
Attachment C
Original Professional Services Agreement
6-12
CITY OP NEWPORT BEACH
14D Civir CaM EF DiiVe
Newport 9each, Califgrnia g266C�
949 644-3045 1 949 G4+4-3039 FAX
nevrpottheachC2.gov{citytierk
April ] 5, 2{125
Sclunitz & Associates
Attn: Don Schmitz
28230 Agoura Road, Suite 200
Agoura Hills, CA 91301
Re: City Contract No. t.-7440-2
Dear Don Schmitz:
Enclosed p]eu e find your executed copy of the On -Call Professiontal Services Agreement
for Adviser and AdvoQate Services for City Applications before the California Coastal
Commission.
If you havc any questions or need additional infonioation, please contact Administrative
Analyst Brittany Rarniroz at (949) 644-3239.
Sincerely,
Jennifer Farris, MMC
Assistant City Clerk
Enclosures
cc: Brittany Ramirez, Community Development (via email)
ON -CALL PROFESSIONAL. SERVICES AGREEMENT
WITH SCHMITZ & ASSOCIATES FOR
ADVISOR AND ADVOCATE SERVICES FOR CITY APPLICATIONS BEFORE THE
CALIFORNIA COASTAL COMMISSION
THIS ON -CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement") is
made and entered into as of this 25th day of March, 202 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("City")and SCHMITZ & ASSOCIATES, a California corporation ("Consultant"),
whose address is 28230 Agoura Road, Suite 200, Agoura Hills, CA 91301, and is made
with reference to the following:
RECITALS
A, City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City,
B. City desires to engage Consultant to provide advisor and advocate services for
City applications before the California Coastal Commission ("Project"),
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement-
D. City has solicited and received a proposal from Consultant. has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement,
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows-
�I=1 N1fJ
The term of this Agreement shall commence on the Effective Date, and shall
terminate on March 31, 2027, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2,1 Consultant shall perform the on -call services described in the Scope of
Services attached hereto as Exhibit A and incorporated hereon by reference (`Services"
or "Works). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following:
2,1,1 A detailed description of the Services to be provided;
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2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
and
2.1.3 The estimated number of hours and cost to complete the Services,
2.1.4 The time needed to finish the specific project.
2_2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
3. TiME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal_ In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shail pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Bates attached hereto as Exhibit B and incorporated herein
by reference. Consultant's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed
Seventy Five Thousand Dollars and 001100 (75,000.00), without prior written
authorization from City. No billing rate changes shall be made during the terra of this
Agreement without the prior written approval of City.
Schmitz & Associates Page 2
6-15
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed andlor the specific
task in the Scope of Services to which it relates, the date the Serviees were performed,
the number of flours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for these costs or expenses specifically
identified in Exhibit B to this Agreement and the Later Proposai or specifically approved
in writing in advance by City.
4_4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties slid not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be }laid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B and the Letter Proposal,
PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term, Consultant has designated Don Schmitz to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City_ ity's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel,
5,2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement,
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff, The Project Manager's cellular phone number shall be provided to City,
6. ADMINISTRATION
This Agreement will be ad ministered by the Community Development Department,
City`s Deputy Community Development Director or designee shall be the Project
Administrator and shall have the authority to act for City under this Agreement. The
Project Administrator shall represent City in all matters pertaining to the Services to be
rendered pursuant to this Agreement_
Schmitz & Associates Page 3
6-16
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule,
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision, Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Wards, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8,2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8_3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish tamely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, wntractor , or governmental agencies,
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, skits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys'
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a Claire; collectively. "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this Agreement. any Work
performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
Schmitz & Associates Page 4
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the Project (including the negligent, reckless. and/or willful acts, errors andlor omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of there or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties_ Nothing in this indemnity shall
be construed as authohzing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnifica#ion to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and rneans. of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or ether right of employment shall accrue to Consultant or its employees_
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to worm closely and cooperate fully with ity's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the CansiiItant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with it 's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
Schmitz & Associates
Page 5
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14, INSURANCE
Without limiting onsuitant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the terra
of this Ag reement or for other periods as specified in this greerent, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated hereir~ by reference,
15, PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall net be assigned, transferred contracted or
subcontracted out without the prior written approval of City_ Any of the following shall be
construed as an assignment; The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (2 5%) or more of the assets of the corporation, partnership or joint -venture.
UF311:101ki110X R1111 Z 10
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal, Consultant shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies clue to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City,
17. OWNERSHIP OF DOCUMENTS
171 Each and even report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
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17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at ity's sole risk and without liability to Consultant_ Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and pity assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such charges.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat,
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information_
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including posts, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
Q. RECORD
Consultant shall keep records and invoices in connection with the Services to be
perforated under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all fork, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such }payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding_ Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed surna.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
Schmitz & Associates Page 7
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that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit ity's rights under the law or any
other sections of this Agreement.
. CITY4S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
4. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Pict of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24-2 If subject to the Act and/or Government Code §§ 1090 et sea., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25.1 All notices, demands. requests or approvals, 'including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shah be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at;
Attn; Deputy Community Development Director
Community Development Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
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25-3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn' Dan Schmitz
Schmitz & Associates
8230 Agoura Road, Ste, 200
Agoura Hills, CA 91301
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultantshall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.)-
27. TERMINATION
27.E In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party small be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two () calendar days after receipt of written notice of default,
specifying the nature of such default and the steps € ecessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time b
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has riot been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement. whether in draft or final form-
8. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
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28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted, In addition, all Work }prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City,
28.3 Waiver, A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character,
8_4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein,
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement s h a I I govern.
28.6 Interpretation, The terms of this Agreement shall be construed In
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply,
8.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney,
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all rnatters relating to it and any action brought relating to this
Agreement shah be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
8.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law,
8_11 No Attorneys' Fees. 1n the event of any dispute or legal action arising under
this Agreement, the prevalling party shall not be entitled to attorneys' fees,
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28,12 Counterparts. This Agreement may be executed in two ( ) or more
counterparts, each of which shall be deemed an aflginal and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE1
Schmitz &, Associates Page 11
6-24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date- -` 1 °r.) --,
CITY OF NEWPORT BEACH,
a California uni i
Date: � I corporation
�
By: r $ :
AaroKC. Harp Seimone Jurji
City Attorney Assistant City Manager
ATTEST: CONSULTANT: SCHMITZ &
Date: ASSOCIATES, a California corporation
By: i:,.
r L lan I. Brown
Date:
Signed in Counterpart
Bv:
Donald W. Schmitz Jr -
City Clerk,x, Chief Executive Officer, Chief Financial
Officer, Secretary
�L''j, T
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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6-25
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITE' ATTORNEY'S OFFICE a California municipal corporation
Date;: -, f Jc, 1;-:5 Date -
By: * - By;__
Aare O. Harp '�y Seirnone Jurjis
Oily Attorney { 5, Assistant City Manager
ATTEST: CONSULTANT: SCHMITZ �
Date; ASSOCIATES, a California corporation
Date. - -
By:
Leilani I. Brawn
City Clerk
Donald 1+V, Schmitz fir.
Chief Executive Officer, Chief Financial
Officer, Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing fates
Exhibit C - Insurance Requirements
Schmitz & Associates Page 1
6-26
EXHIBIT
SCOPE OF SERVICES
Schmitz & Associates Page A-1 6-27
EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide on -cal l professional services as an advisor and advocate
for Cityapplications before the CaliforniaCoastal Commission,including, but not limited
to; coastal development permits, amendments to the certified Local Coastal Program and
otf er matters requiring the approval of the California Coastal Commission by the
California Coastal Act_
Consultant shall be responsible for filing, on tyre ity's behalf, all forms required
of the City as a result of services performed by Consultant including, but not limited
to, registration forms, authorization statements, and Periodic activity reports with the
Secretary of State, the FPP , a A any other regulatory body, provided the C ity responds
inatimely way to Consultant's requests for form approvals, information, signatures, and
other requested information.
Schmitz & Associates
PageA-1
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EXHIBIT B
SCHEDULE OF BILLING RATES
Schmitz & Associates Page B-1 6-29
EXHIBIT B
SCHEDULE OF BILLING RATES
Consultant's Fees and Hourly Fates.
President $4.00lhour
PofPlarining $2 6,00lhour
Project Team Manager $20 ,001 hour
pecial Projects Manager $20 .00lhour
Senior Planner $165.001hour
Associate Planner $14 .001hour
IS Manager $160.001hour
Assistant P[anner $1 0.00Ihour
Planning Technician 105.441 hoar
'Bliling is in 111Oth of an hour increments.
Consultant shall charge a flat fee of 4,250.00 for "representation" at California
Coastal Commission hearings and other out-of-town hearings. The flat fee does not
include preparation for the hearing (i.e_ review of documents and staff reports, lobbying,
preparation ofgraphicsand writtenmaterials) ortravel costs (i.e.airfare, hotel andrental
oar),
Additional Services and Outside Expenditures.
Consultant may hill for in-house services, including but not limited to;
photocopying, computerized research, farsimile services, postage, plotting, scanning,
and small field expenses such as mileage, parking, lodging and the lime.
All third party vendor or outside professional services will be contracted directly by
the City.
Schmitz & Associates PageB-1
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EXHIBIT C
INSURANCE REQUIREMENT —PROFESSIONAL SERVICES
1. Provision of Insurance. Wfthout limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and In a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here, If
Consultant uses existing coverage to comply and that coverage does not rneet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2_ Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (er higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the Oity's Risk Manager.
3_ Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall Maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officerSr agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project andlor Services contemplated by this
Agreement.
B. General Liability Insurance, Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
GG 00 01, in an amount not less than two million dollars ($ ,000,000) per
occurrence, four million dollars (4,000,000) general .aggregate, The policy
shall cover liability arising from bodily Injury, property damage, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in o business contract),
C. Automobile Liability Insurance_ Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Schmitz & Associates Page -1 6-31
vehicles, in an amount not less than one million dollars (1,004,000)
combined single limit each accident.
0, Professional Liability (Errors & Omissions) Insurance, Consultant skull
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
three million dollars ( ,000,000) per claim and three million dollars
(,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a pened no
less than three years after compietion of the Services required by this
Agreement,
E. E cess/Umbrella .Liability Insurance, If any Excess or Umbrella Liability
policies are used to meet the limits of liability required by this contract, then
said policies shall be "fallowing form" of the underlying policy coverage,
terms, conditions, and provisions and shall meet all of the insurance
requirements stated in this contract, including, but not limited to, the
additional insured and primary & non-contributory insurance requirements
stated herein. No insurance policies maintained by the City, whether
primary or excess, and which also apply to a loss covered hereunder, shall
be called upon to contribute to a loss until the Contractor's primary and
excesslumbrelIa liability policies are exhausted,
4. Other Insurance requirements, The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement or shall specifically allow Consultant or
others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants,
B. Additional Insured Status. All liability policies including general liability,
excess/umbrella liability, pollution liability, and automobile liability, if
required, but not including professional liability, shall provide or be endorsed
to provide that City, its City Council, boards and commissions, officers,
agents, volunteers, employees and any pemon or entity owning or
otherwise in legal control of the property upon which Consultant performs
the Project and/or Services contemplated by this Agreement shall be
included as insureds under such policies,
Schmitz & Associates Page - 6-32
C. Prirnary and Non Contributory. Ali liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City,
D. Notice of Cancellation_ All policies shal I provide City with thirty (30) calendar
days' notice of cancellation (except for nonpayment for which ten (10)
calendar days' notice is required) or nonrenewal of coverage for each
required coverage,
5_ Additional Agreements Between the Parties.. The parties hereby agree to the
following:
A- Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement forworkers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shell be signed by
a person authorized by that insurer to bind coverage on its behalf_ At least
fifteen (1 ) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City, if such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B_ itV's Fight to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the arnounts and types of
insurance required by giving Consultant sixty (0) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation,
C_ Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors, For CGL coverage, subcontractors
shall provide coverage with a format at lust as broad as CG 20 38 04 13.
Schmitz & Associates Page -3 6-33
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E, Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above. the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F_ Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City_ City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. elf -
insurance will not be considered to comply with these requirements unless
approved by City.
City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at ity's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be neoessary for its proper protection and prosecution of the
Work.
Schmitz & Associates Page -4 6-34
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